Information Note on the Court’s case-law 193

February 2016

Mitrova and Savik v. "the former Yugoslav Republic of Macedonia" - 42534/09

Judgment 11.2.2016 [Section I]

Article 8

Article 8-1

Respect for family life

Imposition of immediate custodial sentence on mother for preventing father from seeing their child: no violation

Facts – The applicants are mother and daughter. Following her parents’ divorce in Ma y 2007, the daughter, three months old at the time, was placed in her mother’s custody. The contact rights of her father were determined by a social welfare centre (“the Centre”). Following her repeated refusals to allow the father to meet their daughter, the mother was twice convicted and given a suspended prison term. However, she continued to prevent the father from seeing the daughter and, as a result, was convicted a third time and on this occasion given an immediate three months’ custodial sentence. T he daughter was placed with the father from 30 July 2009, when the mother started serving her prison sentence. Following her release on 8 October 2009, the Centre decided on arrangements for her contact with the daughter and they met for the first time on 19 February 2010. The Centre gradually increased the amount of contact between the applicants until the mother eventually regained custody of the daughter after February 2011 when the father’s custody claim before the civil courts was finally dismissed. Ho wever, in March 2012 the Supreme Court overturned the lower courts’ judgments, the decisive reasons being the mother’s refusal to allow the father to see the daughter and that it was in the child’s best interests for the father to be given custody. Followi ng that judgment, the Centre determined new living arrangements based on an agreement between the parents, under which the daughter was to live with her mother during the week and with her father at the weekend.

The applicants complained about the mother’s custodial sentence, the Centre’s failure to determine the mother’s contact rights for several months during and immediately after her imprisonment, and the Supreme Court’s judgment revoking custody of her daughter.

Law – Article 8: The mother’s conviction and custodial sentence were “in accordance with the law” and aimed at enabling the father and the daughter to enjoy each other’s company, deterring the mother from reoffending and helping crime prevention as a whole.

As to whether the custodial sentence w as “necessary in a democratic society”, the Court had to look at it in the light of the case as a whole. In this connection it could not overlook the fact that the sentence was imposed after the mother had already been convicted of the same offence on two previous occasions and sentenced to a suspended prison term. Despite those convictions and sentences, the mother had remained uncooperative and continued to prevent the father from seeing the daughter. The trial court had been reasonably guided by the best interests of the child as determined in the Centre’s orders. Whereas the custodial sentence had had short-term effects on the applicants’ rights, in the long run it had as a primary consideration the child’s best interests, namely to enable her to benefit from the company of both parents. The domestic authorities had therefore carried out an acceptable assessment of the relevant facts and taken a measure which could not be considered disproportionate to the legitimate aims pursued. The likelihood of family reunification would be progressively diminished and eventually destroyed if the biological father and the child were not allowed to see each other at all, or only so rarely that no natural bonding between them was likely to occur.

During the mother’s dete ntion, which had lasted two months and nine days, there had been no direct contact between the applicants. However, it was not alleged, nor was any evidence adduced, that during her detention the mother had made a proper request to the authorities, includi ng the Centre, to allow her to contact the child. In the absence of any such request, the Centre was not empowered to determine of its own motion the applicants’ rights in that respect. Immediately before her release (on 6 October 2009) and afterwards (on 4 January 2010), the mother lodged two contact requests with the Centre, which could not be examined because she refused to take part in interviews with officials from the Centre. On the basis of a fresh request made on 29 January 2010 the Centre had decid ed on the arrangements for contact with the daughter. That order had been issued within a reasonable time (on 10 February 2010) and had allowed the applicants to meet each other at the first scheduled meeting on 19 February 2010. In those circumstances, th e State could not be held responsible for the fact that the applicants had not seen each other between 30 July 2009 and 19 February 2010.

As regards the Supreme Court’s judgment granting the father custody of the daughter, it had given primary consideration to the child’s best interests in enjoying the company of both parents. That assessment was within the State’s margin of appreciation and the reasons given were relevant and sufficient.

Conclusion : no violation (five votes to two).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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